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Criminal Law


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when possible, with the immigration authorities all together. Terefore, the very first step in representing a foreign national charged with a crime is to determine his status in the United States.


Review the Client’s Entire Criminal History and Record


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Once the practitioner has determined the client’s status in the United States, the next, and crucial step is to review, in its entirety, the client’s criminal record. In some cases, the client may have a prior conviction that will make him deportable and counsel should make any attempt possible to avoid pleading to a second deportable offense, while also maintaining eligibility for waivers or relief from removal.


Juxtapose the Criminal Case with the Immigration Consequences


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To find out what Yodle can do for you, call Yodle representative Brian Dole at:


(480) 455-6741


criminal history, analyze the immigration consequences of the criminal case, develop defense strategies and priorities, and advise the client both of current immigration risks and potential future immigration risks.


Determining your Client’s Actual Status in the United States


In order to best represent a foreign national charged


with a crime, it is extremely important that a practitioner first determine exactly what the client’s current status is because the immigration consequences of criminal activity are directly related to the status currently held by the client. For instance, some individuals may have acquired or derived citizenship from their parents and not even know it, in which case most of the immigration consequences would not be applicable. Te only applicable immigration consequence that would impact a citizen is the penalty of becoming ineligible to sponsor family members in the future if convicted of certain crimes relating to minors. A lawful permanent resident on the other hand, would want to avoid a conviction that would make him deportable or inadmissible; while an individual who entered the United States without inspection and has no status in the United States would want to avoid coming into contact,


20 Trial Reporter / Summer 2011 After reviewing the criminal history, practitioners must


engage in a thorough review of the immigration consequences of the criminal charges and develop defense strategies and priorities to be pursued on behalf of the client. In reviewing the charges brought against the client, it is important to understand how the conviction or criminal activity will be reviewed in the immigration context. Tere are four different types of review that have been established: categorical approach, modified categorical approach, non-elemental fact review, and finally a review of all evidence necessary to determine whether a conviction is one of a crime of moral turpitude. Under the categorical approach, the judge may not


consider additional evidence concerning prior crimes or facts underlying the conviction.11


Tis basically means that the


elements of the ground of deportability or inadmissibility will simply be compared with the statute under which your client has been charge to determine whether the conduct will result in negative immigration consequences. If the statute under which your client has been charged is divisible, meaning both conduct that would and would not subject him to deportation or inadmissibility is covered, and then the modified categorical approach is applied. Te modified categorical approach includes a review of the entire record: the charging document, plea agreement and transcript.12 Te Board of Immigration Appeals has established the non-elemental facts review to determine whether an offense constitutes a “particularly serious crime.” Under this review, once the elements of a crime bring it within the purview of a “particularly serious crime” all information deemed to be


reliable can be considered to make the final determination.13 11 Taylor v. US, 495 US 575 (1990). 12 US v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002); Shephard v. US, 544 U.S. 13 (2005). 13 Matter of N-A-M, 24 I & N Dec. 336 (BIA 2007).


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